Employment is an important sphere being affected by Covid-19 with many legal implications to consider. It raises important constitutional questions such as whether the Government has the right to interfere with our right to work and when does a health risk become so great that the Government is allowed to interfere and restrict our fundamental right to freedom of movement?
It also raises less philosophical, but equally important, matters such as the duties of the employer to protect their employees, the rights of the employee and how the law serves both sides at this extremely uncertain and difficult time.
Even before Covid-19 came along, employers have general duties under the Occupational Health and Safety Act 1982 to ensure the health, safety and welfare of all of their employees, so far as is practicable.
In a press release this week, the Bermuda Government advised all citizens who do not need to go to work to “stay at home”. This is over and above those who are self-quarantining and/or self-isolating because they are ill, have symptoms or have been registered as those who have been exposed to the risk of infection.
Some employees can work from home “remotely”, but for some it is not practical or possible. For those in the latter category, do employers have a duty to continue to pay them? The British Home Secretary announced last week that those employees choosing to self-isolate during this time should be protected by law, as if they were sick.
Where an employee is dismissed for leaving work or refusing to return in circumstances where the employee reasonably believed there to be a serious and imminent danger, it is likely to constitute unfair dismissal.
But will a doctor, or a nurse, be in breach of their contract if they refuse to work because of fear and risk of infection? Is a higher standard expected of those type of employees than say, a hospital cleaner or a waiter in a restaurant?
It may be that ultimately, while employment law confers protection on such individuals, their own professional regulators do not. Will those members be held to a higher standard than that required by their employment contracts, deeming those who have fallen below it to have brought the profession into disrepute?
Many members of the public may consider such an approach to be quite reasonable. Yet could such an analysis extend to other professions with similar regulators? For example, could a lawyer who refused to attend a public hearing be subject to disciplinary proceedings?
The Government announced that they will be providing employment benefits to those whose employment has been affected by Covid-19 — if they are eligible — up to $500 per week. This is to protect those from the inevitable fallout of being laid off until we have been given the all-clear to open our business doors again.
Companies will be making tough decisions about whether to make staff redundant, with real fear of not being able to pay them or stay afloat.
Redundancy and layoff
The Employment Act 2000 allows an employer to lay off an employee only for a period not exceeding four months. Any period longer than that shall be deemed a termination for redundancy.
An employer can terminate an employer whose position is redundant only for reasons laid out in an exhaustive list, including when it is impossible or impractical to carry on running business as usual owing to an “act of God”, or other circumstances beyond the control of the employer.
Covid-19 would fit into that category. But it does not end there. Before making this decision in respect of an employee or group of employees, the employer must state why, the number and categories of employees likely to be affected, and the period over which such termination is likely to be carried out.
Employers must also consider the possible measures that could be taken to minimise the adverse effects of redundancy on employment as well as the possible measures that could be taken to mitigate the adverse effects of any termination on the employees concerned.
Provided the employee has worked continuously for more than one year, employees who find themselves in this position are entitled to be paid severance allowance — no less than the equivalent of two weeks’ wages for each completed year of continuous employment up to the first ten years, and three weeks’ wages for each completed year of continuous employment thereafter, but no more than six months’ wages.
There are exceptions and each case is determined on its particular circumstances.
•Victoria Greening is Legal Counsel at Chancery Legal Ltd and will be holding free consultations on the legal implications of Covid-19 on employment by WhatsApp and FaceTime, starting tomorrow at 3pm. She can be reached on 595-3789 to make an appointment